Classify direct status use as treatment: employment-selection law, which review is appropriate?
Distinguish treatment from impact; apply intent analysis to the former and job-relatedness, necessity, and alternatives to the latter.
The question
A U.S. employer is procuring software for warehouse-hiring decisions. One model directly uses a protected characteristic; another is facially neutral but produces substantially different selection rates. Under applicable U.S. employment-selection law, which review is appropriate?
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- Compare predictive accuracy only.Accuracy does not distinguish intentional differential treatment from disparate impact or satisfy the relevant employment-selection analysis.
- Classify direct status use as treatment; assess neutral disparity for impact, job relatedness, necessity, and alternatives. ✓Direct use of protected status raises disparate-treatment concerns, while a neutral procedure with disproportionate outcomes may raise disparate-impact concerns. The latter requires analysis of job relatedness, business necessity, and appropriate less-discriminatory alternatives.
- Treat both models alike and review outcomes later.The models present different legal questions, and delaying review can leave treatment or impact concerns unaddressed.
- For the neutral model, investigate group disparity only after proving intent.A facially neutral procedure can raise disparate-impact concerns without proof of discriminatory intent.
The trap
First classify direct status use versus neutral disparate outcomes; then apply the distinct legal analysis. How to remember it
Distinguish treatment from impact; apply intent analysis to the former and job-relatedness, necessity, and alternatives to the latter.
How many of these would you get right?
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